Statutory interpretation

Want to meddle with the Official Forms? Or use discretion to make two parenting orders instead of one? Or set clear contact or changeover times in Family Court orders? Help is at hand. You need not wander, lonely as a dog, over a riverbed, chasing a rainbow…

‘I haven’t read the Interpretation Act,’ said someone who should have known better. I won’t identify him, for fear of causing significant offence. The comment was made in conversation following a chance meeting. (Doesn’t everyone discuss the Interpretation Act, in chance meetings?)

It had already become distressingly apparent to me that many family lawyers had not read (or at least understood) the Interpretation Act 1999. Some had been appointed to the bench and had still not read it.

Please do, if you practise family law in New Zealand. Or if you adjudicate on it. It may save you some embarrassment, as well as saving the taxpayer (or private clients) some money.

There is more to it than the celebrated introductory sections of the Interpretation Act – about purposes and principles – to which the bench and bar regularly refer.

There are three later sections that particularly interest me – relating to singular/plural meanings, time (the meaning of ‘from’), and the potential to adjust prescribed forms. Sound riveting? Read on….

Words in the singular include the plural (and vice versa)

Within the Interpretation Act, my favourite section is section 33. It provides that, unless the context otherwise requires, words in the singular include the plural, and vice versa. So ‘parenting order’ means also ‘parenting orders’. ‘Interim order’ includes also ‘interim orders.’ ‘A directions conference’ means also ‘Several directions conferences’.

Thus, unless the context otherwise requires:

COCA section 48 may refer to more than one parenting order (thus allowing split orders?)

FCR rule 416U(5) may allow more than one ‘directions conference’ on the without-notice track (while not allowing any other type of conference)

It is not difficult.

Yet, taking one of the above issues as an example, to date there have been at least four Family Court decisions on whether ‘split orders’ are available (i.e. a final day-to-day care order with an interim contact order, or vice versa): two for and two against. There are at least two commentaries: one for and one against. (Contact me for details.) None of those decisions or commentaries mention the Interpretation Act.

There is now a High Court decision pending. UPDATE: The High Court confirmed that split parenting orders were possible, citing (para [37]) the Interpretation Act in its decision. See Johnson v Johnson [2017] NZHC 1564.

In my respectful submission, the intervention of the High Court should not be needed, in order to draw the attention of the family bench and bar to a basic tool of statutory interpretation.

‘From’ does not equate to ‘beginning on/in’

I cannot pretend that I do not know about section 35(2). I cannot say that I ‘like’ it. It makes life unduly complicated.

Contrast this with common parlance where ‘from’ equates to ‘beginning on’.

I once tried to interest a Family Court judge in the statutory definition of ‘from’, when attempting to interpret a Family Court order. The learned judge was singularly unimpressed. ‘Never before in my time in the Family Court,….’ she began, incredulously.

Admittedly, the Interpretation Act applies only to legislation, not to court orders. (I have since learnt that case law applies similar principles to court orders, contracts and other documents.)

Applying section 35(2) of the Interpretation Act would mean that ‘From 1 February’ meant ‘Beginning the day after 1 February’, and ‘From March’ meant ‘Beginning in April’. ‘From the first week of the school holidays’ would mean ‘beginning on the first day of the second week of the school holidays’.

I have not found case law considering this issue in the specific context of a Family Court order. The issue has arisen in disputes about other types of documents. In those cases the governing factor is whatever the context implies, with preference – if the context does not imply otherwise – for the same meaning as above.

Personally I now try to avoid using ‘from’ in a parenting agreement or proposed parenting order. It is too ambiguous. Children do not need their parents to be confused by ambiguous wording in a document that is intended to make life easier for the children by spelling out clear arrangements.

And I long for a High Court decision that spells out the default meaning of ‘from’ in a Family Court order. Because somebody needs to sort this out.

Prescribed forms may be altered (don’t let the bureaucrats bully you)

Soon after the 2014 Family Court ‘reforms’ were introduced, I was driving over the Kaimais (from Hamilton to Tauranga) after filing urgent without-notice applications in Hamilton for a protection order and interim parenting order. The Family Court manager phoned to tell me my applications ‘could not be processed’ because I had failed to provide a separate ‘information sheet’ for each application.

Prior to the ‘reforms’, one filed a single ‘information sheet’ which covered all applications being filed at the same time. It had not dawned on me that the bureaucrats who devised the ‘reforms’ now expected lawyers or parties to compile two different, separate ‘information sheets,’ containing the same information, when making urgent and potentially life-saving applications to the Family Court in tight timeframes.

I was not going to drive back to my office to compile a second form that added nothing to the information already provided. Nor was I going to allow this to wait until the next day.

Fortunately, I knew the Information Act would ride to the rescue. I informed the hapless manager that I was currently driving over the Kaimais, and I did not know the section number, but somewhere in the Information Act was a section that meant you didn’t have to use the prescribed form as long as you provided the same information.

Bless him, he shortly rang me back to say he was processing the applications.

That was section 26. My paraphrase to the manager was a bit rough but not too far off. Under section 26, minor differences in the form were acceptable as long as the form still had the same effect and was not misleading.

Does the same reasoning apply to the ‘approved forms’ in COCA proceedings, referred to in FCR 416? I am unaware of any decisions on that specific point. I would however be astonished if any court ruled otherwise, once section 26 was drawn to the judge’s attention.